This appeal presents the question whether the disciplinary actions of a private college, by virtue of a state statute requiring colleges to adopt disciplinary rules and to file them with the state, constitute state action under the Constitution and 42 U.S.C. § 1983 (1982). The appeal also requires us to address and to clarify the pleading requirements for claims brought under 42 U.S.C. § 1981 (1982). Appellants are students who were suspended by Hamilton College on November 14, 1986 when they refused to end a three-day occupation of Hamilton's main administration building. On November 26, 1986, seeking injunctive relief under Section 1983, the suspended students brought this action in the Northern District of New York. Named as defendants were the College; its President, J. Martin Carovano; and its Dean of Students, Jane L. Jervis. The students' Section 1983 claim asserted that the College was a state actor because it had adopted disciplinary rules pursuant to N.Y. Educ. Law § 6450 (McKinney 1985), the so-called Henderson Act, and had denied them due process when it suspended them pursuant to those rules. That Act directs all colleges and universities in the State of New York to adopt and to file with the state "rules and regulations for the maintenance of public order" that include as possible sanctions "suspension, expulsion or other appropriate disciplinary action." For their Section 1981 claim, appellants alleged that "the defendants are selectively enforcing the College rules on student conduct against plaintiffs," among other reasons, "because of their criticisms of . . . prejudice[] at Hamilton, . . . and because they are black, Latin or gay; supportive of the rights of blacks, Latins and gays and without old family ties to Hamilton." Complaint para. 35.

Appellants sought a preliminary injunction against their suspensions, and appellees moved to dismiss the complaint. After some hurried discovery, the district court on December 23 held an evidentiary hearing on the issue of state action. At the end of that hearing, Judge Cholakis, treating appellants' Section 1981 claim as arising under Section 1983, denied appellants' request for a preliminary injunction and dismissed their complaint on the ground that state action was lacking. The students appealed, and a divided panel of this court reversed. Albert v. Carovano, 824 F.2d 1333, modified on rehearing, 839 F.2d 871 (2d Cir. 1987). We ordered reconsideration in banc upon appellees' suggestion, and we now vacate the panel opinion. We affirm the dismissal of the Section 1983 claim, but remand the Section 1981 claim to allow appellants an opportunity to replead it.

BACKGROUND

Chartered in 1812, Hamilton College is a privately-endowed institution of higher learning located in Clinton, New York. Until 1969, it prescribed a concise code of conduct for its students. The College stated only that "Conduct becoming a gentleman is expected of Hamilton men at all times," and that "It is assumed that undergraduates will understand what constitutes gentlemanly conduct without expressed rules to cover every occasion." The College's Judiciary Board limited suspensions to "extremely serious misconduct."

The College altered its code of conduct in 1969, however, after New York enacted the Henderson Act. That Act was a response to campus unrest in the 1960's, and as noted, requires colleges both to adopt rules concerning the maintenance of public order on campus and to file those rules with the state.*fn1 Colleges that fail to comply are not eligible to receive state aid.

The language of the Henderson Act requires only that rules adopted and filed pursuant to the Act provide "suspension, expulsion or other appropriate disciplinary action" as penalties for violation of those rules. Beyond this the Act is silent. Colleges are free to define breaches of public order however they wish, and they need not resort to a particular penalty in any particular case. Finally, nothing in the language of Section 6450 requires colleges to enforce the regulations filed pursuant to that Section at all. As we have previously observed, the terms of the Act leave "one wonder[ing] whether rules and regulations consisting solely of the statement that any individual guilty of a transgression against the public order of the campus shall be required to give the Dean of the College a rose and a peppercorn on Midsummer's Day would satisfy the literal command of the statute in all respects." Coleman v. Wagner College, 429 F.2d 1120, 1124 (2d Cir. 1970).

To comply with Section 6450, the Trustees of Hamilton College adopted and filed a set of rules styled "Freedom of Expression/Maintenance of Public Order at Hamilton College." Today these rules are incorporated in Hamilton's A Guide to the Policies and Procedures of Hamilton College (1986). Included as examples of "disruptions of public order" are disruptive noise, violence or threats, the destruction of college property, and the disruptive "physical possession of a building." The rules set forth the various tactics and procedures (ranging from "constructive discussion" to court orders) that Hamilton's President may invoke at his or her discretion in response to disturbances. In addition, the rules state:

Penalties for violations of the provisions of this Section of "Student Conduct" [referring to a section of the Guide ] (which penalties shall be in addition to any penalty provided for in the New York state penal law or any other New York or federal law to which a violator may be subject) shall include the following:

b. For students the procedures shall be those set forth under "Student Discipline," [a subsection of "Student Conduct"], and may result in disciplinary action of the most severe kind, including suspension or expulsion;

Elsewhere in the Guide, the subsection entitled "Student Discipline" (which was not filed with the state) explains in great detail the processes by which Hamilton's students may be disciplined. Most of this detail is devoted to the structure and conduct of the school's "Judiciary Board," which "has jurisdiction over infractions by students of general standards of conduct." At the same time, however, the Guide suggests that Hamilton's President may dispense with procedures outlined in the Guide. It thus states, "The right of the President to decide finally on any student disciplinary matter is not precluded by the provisions outlined below."

According to the complaint and the affidavit of appellant Gur Melamede, the dispute at issue originated in a series of incidents on the Hamilton campus during the academic year 1985-86. Protests developed against apartheid and against Hamilton College's investments in firms doing business in South Africa. According to appellants, some black women students who participated in the protests were the victims of racial insults, and one received several threats on her life. These insults and threats were aggravated in the students' eyes by Hamilton College's alleged failure to investigate the incidents, to establish an African-American Studies program, and to divest itself of investments in firms doing business in South Africa.

The College apparently hoped to reduce tensions by scheduling a series of public discussions of prejudice. These efforts backfired. On November 7, 1986, the College held an alumni symposium on the topic of discrimination. Of the four symposium panelists, only one was female, and she was not herself a graduate of Hamilton but rather the wife of an alumnus and the mother of another. Some students considered this panel's composition as sexist. On Monday, November 10, the College held a debate on the issue of divestment, at which a faculty member who favored divestment likened apartheid to Nazism. President Carovano described this comparison as outrageous because it trivialized the Holocaust. Black students in attendance walked out en masse.

During the next two days, students formed a coalition among five organizations -- the Black and Latin Student Union, the Women's Center, the Gay and Lesbian Alliance, the Progressive Young Democrats, and Hamiltonians for Divestment -- in order to protest what they saw as the College administration's failure "meaningfully" to address "the perceived racism, sexism and other prejudice at Hamilton." Complaint para. 10. Meanwhile, on Tuesday, November 11, a handwritten leaflet was circulated on campus "to those who are truly black." The leaflet said that "at the Divestment debate our race was truly insulted by . . . President Carovano," and announced plans for an "all night 'for real' sit in." This protest apparently never occurred. On the next day, however, a group of approximately forty to sixty students from the student coalition marched on Buttrick Hall, Hamilton's main administrative building. When the students arrived there shortly after 4:00 p.m., they gathered in the lobby, held a moment of silence, and then sang "We Shall Overcome." A few speeches were given. Dean Jervis was told that the students wished to meet with President Carovano. She responded that Carovano was away and warned the students that they would have to leave Buttrick Hall by 4:30 p.m., the building's regular closing time. The students, however, refused to obey. The 4:30 deadline passed, and the students were warned again shortly before midnight. Throughout the night, students freely came and went from the building, a minimum of perhaps ten to fifteen remaining there at any given time. The students, equipped with blankets and sleeping bags, chatted with security guards. An assistant dean brought in some pizza.

On the next morning, Thursday, November 13, 1986, the occupation of Buttrick Hall continued. The administrative staff that normally worked in Buttrick was told to stay home. Dean Jervis went to Buttrick at 8:45 a.m. and told the students that the building was off-limits and was closed to outsiders. Jervis warned that if the students did not leave within fifteen minutes, the College would seek a temporary restraining order against their continued presence at Buttrick. In making this announcement, Jervis expressly noted that she was following one of the possible alternatives listed in Hamilton's "Freedom of Expression/Maintenance of Public Order" statement (filed with the state pursuant to the Henderson Act). The students nevertheless persisted.

Hamilton thereupon went to the Supreme Court of New York, Oneida County, and later in the morning obtained an order temporarily enjoining the students from "congregating within the College's administrative building . . . in such manner as to disrupt or interfere with normal functions conducted by [the College] in such place or to block, hinder, impede or interfere with ingress to or egress from" Buttrick Hall. The College served the order upon the students occupying Buttrick and nailed it to a door of the building. The students, who felt they were not "disrupting" or "interfering" with anyone or anything, refused to budge. At 4:00 p.m., Jervis returned to remind the students yet again that they were, in the view of the College, violating the restraining order. She added that the College was sending letters of warning to those students present who could be identified, and that copies of the warning letters would be sent to the students' parents. The occupation of Buttrick continued.

At 11:00 a.m. on Friday, Dean Jervis returned once again. She read a terse notice stating that each of the students in Buttrick was violating the restraining order, that Hamilton would initiate contempt proceedings, and that the students were trespassing and could be subject to criminal charges. Finally, she warned that if they did not vacate Buttrick immediately, the students would be suspended from the College. Jervis personally handed copies of the notice to each of the students. She posted a copy as well. Two hours later, she again returned to Buttrick, where she found the twelve appellants and informed them that they were suspended. Appellants concede that "the defendants advised the students assembled [in Buttrick] that any who did not leave would be suspended." Complaint para. 15.

On the following Monday, November 17, President Carovano modified the suspensions so that they would not take effect until December 20, 1986, the final day of the fall semester, thus allowing appellants to complete the semester. The Hamilton Trustees were to meet in early December, and the students in question were invited to inform the trustees in writing of their "views on what has happened." The students' written response to this invitation demanded hearings before the Judiciary Board and stated that the chance to air their views before the Trustees did not accord them due process. Carovano also invited the students to present to him any "extraordinary circumstances" that might justify lessening the penalty imposed in any particular case. The students ignored this invitation.

Instead, on November 26 the students filed this suit in the Northern District of New York. They asserted three causes of action. The first alleged that the College had violated the due process clause of the fourteenth amendment, and hence Section 1983, when it suspended the students. The second, a pendent state-law claim, alleged that the College had violated its own disciplinary procedures. See Tedeschi v. Wagner College, 49 N.Y.2d 652, 427 N.Y.S.2d 760, 404 N.E.2d 1302 (1980). The third, which did not mention Section 1981 but which appellants now assert states a Section 1981 claim, alleged that the College had selectively enforced its disciplinary code against appellants because they were, among other things, "black, Latin or gay; supportive of the rights of blacks, Latins and gays and without old family ties to Hamilton." Appellants sought a preliminary injunction, and appellees moved to dismiss.

The district court promptly granted appellants' request for the expedited discovery of all files maintained by the New York State Education Department regarding the implementation of the Henderson Act. Appellants requested no further discovery. ARgument on the parties' opposing motions was initially held on December 19 before Judge Cholakis. After argument, however, Judge Cholakis on his own motion ordered the parties to present evidence on the issue of state action at a hearing that he scheduled for December 23.

At the evidentiary hearing, appellants introduced numerous exhibits, virtually all of which came from the files of the State Education Department and concerned the circumstances surrounding the passage of the Henderson Act. These documents were largely intended to prove the state of mind of college administrators in New York in 1969. In addition, appellants called as witnesses Professors Austin Briggs and James Ring, members of the Hamilton faculty who testified about the circumstances surrounding the College's drafting, adoption and filing of its "Freedom of Expression/Maintenance of Public Order" statement in 1969. Briggs testified on direct examination that Hamilton's administration had felt compelled by the Henderson Act to adopt and to file the "Freedom of Expression" statement. Ring identified minutes from faculty meetings held in 1968 and 1969. Neither witness testified as to any involvement by state officials in the drafting of the "Freedom of Expression" statement, and neither gave any testimony about the decision to suspend appellants.

Appellants also called Robert D. Stone, Esq., who was, both at the time of the hearing and in 1969, General Counsel to the State Education Department. On direct examination, he testified about a meeting held in Albany in May 1969 between state officials and representatives of various private colleges and universities located in New York. The purpose of this meeting was to discuss and to explain the freshly-minted Henderson Act. Stone was also asked about his understanding of Section 6450:

Q: At the time [1969] did you have a belief that the colleges were required by the law to eject for instance those who were occupying buildings at some point, or whether they could simply under the legislation let the occupation go on for months?

A: It was my understanding of the statute that the penalties for infractions must include ejection. It was not my impression then or now that the legislature meant to instruct the institutions as to when that penalty should be imposed.

On cross-examination, Stone explained that the State Education Department's review of filings under Section 6450 is entirely mechanical. Applying the criteria listed in a memorandum written by Stone on May 8, 1969, a junior staff member simply looks at submissions to see if they meet four requirements: (1) that the filings have been "promulgated by the . . . governing body of the institution"; (2) that they "relate to the maintenance of public order on the premises of the institution"; (3) that they "govern the conduct . . . of students, faculty, staff and all visitors"; and (4) that they provide for "ejection," "suspension, expulsion or other appropriate disciplinary action." Stone's May 8, 1969 memorandum also stated that "a range of penalties may be specified, with provision for the manner in which the specific penalty within the range will be determined in a specific case." Stone also testified as to the Education Department's implementation of Section 6450:

Q: Is it fair to say, Mr. Stone, that in 1969 the Department viewed its task in implementing Section 6450 as constituting a ministerial act of comparing the submissions of the colleges with the four items listed in your memo of May 8th, 1969, and determining whether those criteria were contained in each of the submittals?

A: That is a fair characterization of the way we saw our task.

Q: And after the acknowledgement letter was sent to a particular college advising them that their proposed regulations had been accepted and filed, did the Department undertake any further steps with that college concerning implementation of 6450?

A: The chapter, as I recall it, required that any revisions likewise be filed, and if they were, of course, they were reviewed in the same way as the initial submissions, or against the same criteria.

I do not recall that the Department did any follow-up to see that that requirement of the statute was ...

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